AD General Partner Inc. v. Gill, 2018 BCSC 914

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: AD General Partner Inc. v. Gill, 2018 BCSC 914 Date: 20180605 Docket: S175024 Registry: Vancouver Between: AD General Partner Inc., 0927566 B.C. Ltd. and Illahae Dairy Farms Ltd. Plaintiffs And Julie Maureen Gill and Kalvan Gill, also known as Kalvinder Gill, also known as Kalvin Gill Defendants And Julie Maureen Gill and Kalvan Gill, also known as Kalvinder Gill, also known as Kalvin Gill Plaintiffs by way of Counterclaim And AD General Partner Inc., 0927566 B.C. Ltd. and Illahae Dairy Farms Ltd. Defendants by way of Counterclaim Before: The Honourable Mr.

Justice Myers Ruling on Costs and Form of Order Counsel for the Plaintiffs: David P. Church, Q.C. Ian G. Schildt Counsel for the Defendants: Daniel W. Burnett, Q.C. Written Submissions: Vancouver, B.C. May 11, 17 and 18, 2018 Place and Date of Judgment: Vancouver, B.C. June 5, 2018 [ 1 ] This action concerns an option to purchase the shares of Illahae Dairy Farms Ltd. given to Julie Gill by the defendant 0927566 B.C. Ltd. (AM Properties). [ 2 ] The plaintiffs sought a declaration that the option was null and void on the basis that the Gills breached several terms of the agreement containing the option.

The Gills counterclaimed for an order requiring the plaintiffs to transfer the shares upon the purchase price being tendered. At the hearing, by consent, the Gills amended their Response to Civil Claim, which denied the agreement was breached, to plead estoppel, relief from forfeiture and acquiescence. [ 3 ] In reasons indexed as 2018 BCSC 497 , I concluded that the Gills breached the option agreement but that relief from forfeiture was warranted and therefore the option was valid and subsisting. [ 4 ] The plaintiffs argue that each party should bear their own costs. Quoting from their written argument, they say:

a) notwithstanding the result of the applications, the defendants did not enjoy substantial success and were, in fact, unsuccessful on the issues which consumed the majority of the time during the hearing; and

b) even if the defendants were “substantially successful” on the applications, they were found to have breached the Option Agreement in a number of respects and succeeded only because they were granted relief from forfeiture. In these circumstances, the defendants should not be entitled to an award of costs. [ 5 ] I do not agree. This is not a case where different claims were advanced with divided success. There was one claim with two

possible results: the option was still exercisable or it was not. The fact that only one argument was accepted does not mean success was divided. Parsing results in the manner suggested by the plaintiffs is impractical and only would lead to more costs applications. [ 6 ] The Gills are therefore to have the costs of the action. [ 7 ] Counsel also made submissions regarding the form of order, on which they did not agree.

Apart from costs, the operative provisions of the order are: • The plaintiffs’ claim for a declaration that the February 4, 2016 Option Agreement is null and void is dismissed. • The claim by the defendants in their counterclaim for an order requiring the plaintiffs to transfer the shares of Illahae Dairy Farms Ltd. upon the purchase price being tendered under the Option Agreement is dismissed, without prejudice to similar relief being sought in the future. "E.M. MYERS, J."